Walnut Valley Unified School District (PERB 0289E)

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STATE OF CALIFORNIA
DECISION OF THE

PUBLIC EMPLOYMENT RELATIONS BOARD

WALNUT VALLEY EDUCATORS ASSOCIATION,

)

)
Charging Party, ) Case NO. LA-CE-516

)
Vv. ) PERB Decision No. 289
WALNUT VALLEY UNIFIED SCHOOL DISTRICT, February 28, 1983

Respondent.

Appearances: Sandra H. Paisley, Attorney for Walnut Valley
Educators Association; Patrick D. Sisneros, Attorney (Wagner
& Wagner) for Walnut Valley Unified School District.
Before Gluck, Chairperson; Tovar and Jaeger, Members.
DECISION

JAEGER, Member: This case is before the Public Employment
Relations Board (@ERB or Board) on exceptions filed by the
Walnut Valley unified School District (District) to the hearing

officer's proposed decision finding that the District violated

subsections 3543.5(a) (b) and(c) of the Educational Employment
Relations Act (EERA)*when it unilaterally adopted and

‘The Educational Employment Relations Act is codified at
Government Code section 3540 et seq. All statutory references
are to the Government Code unless otherwise noted.

Subsections 3543.5(a), (b) and (c) provide:

It shall be unlawful for a public school employer
to:

(a) Impose or threaten to impose reprisals on
employees, to discriminate or threaten to
discriminate against employees, or otherwise

applied an evaluation policy governing the issuance of
certificates of competence to certificated employees over the
age of sixty-five (65) and refused to negotiate with the Walnut
Valley Educators Association (Association), the exclusive
representative of certificated employees, concerning such
policy and application.
The District's refusal to negotiate this matter is
conceded. However, the District contended it was not required
to negotiate because the matter was not within the scope of
representation. The hearing officer found the matter to be
within the scope of representation because "the process used by
the District to determine the continued status of certificated
employees past the age of 65 related to the "procedures to be
used for the evaluation of employees."
The District also asserted three affirmative defenses to
the charges: (1) the charge was time-barred, (2) Education
Code section 23922 required the District to unilaterally adopt
Policy No. 6460 and (3) the Association contractually waived
the right to negotiate by agreeing to include retained rights
to interfere with, restrain, or coerce
employees because of their exercise of
rights guaranteed by this chapter .
(b) Deny to employee organizations rights
guaranteed to them by this chapter.
(c) Refuse or fail to meet and negotiate in
good faith with an exclusive representative.
2
applied 	an 	evaluation 	policy 	governing 	the 	issuance 	of
certificates 	of 	competence 	to 	certificated 	employees 	over 	the
age 	of 	sixty-five 	(65) 	and 	refused 	to 	negotiate 	with 	the Walnut
Valley 	Educators 	Association 	(Association), 	the 	exclusive
representative 	of 	certificated 	employees, 	concerning 	such
policy 	and 	application.
to 	interfere 	with, 	restrain, 	or 	coerce
employees 	because 	of 	their 	exercise 	of
rights 	guaranteed 	by 	this 	chapter.
(b) 	Deny 	to 	employee 	organizations 	rights
guaranteed 	to 	them 	by 	this 	chapter.
(c) 	Refuse 	or 	fail 	to 	meet 	and 	negotiate 	in
good 	faith 	with 	an 	exclusive 	representative.
The 	District's 	refusal 	to 	negotiate 	this 	matter 	is
conceded. 	However, 	the District 	contended 	it 	was 	not 	required
to 	negotiate 	because 	the 	matter 	was 	not 	within 	the 	scope 	of
representation. 	The 	hearing 	officer 	found 	the 	matter 	to 	be
within 	the 	scope 	of 	representation 	because 	"the 	process 	used 	by
the 	District 	to 	determine 	the 	continued 	status 	of 	certificated
employees 	past 	the 	age 	of 	65 	related 	to 	the 	"procedures 	to 	be
used 	for 	the 	evaluation 	of 	employees."
The 	District 	also 	asserted 	three 	affirmative 	defenses 	to
the 	charges: 	(1) 	the 	charge 	was 	time-barred, 	(2) 	Education
Code 	section 	23922 	required 	the 	District 	to 	unilaterally 	adopt
Policy 	No. 	6460 	and 	(3) 	the 	Association 	contractually 	waived
the 	right 	to 	negotiate 	by 	agreeing 	to 	include 	retained 	rights
2

and
	conclusiveness
	of 	agreement
	clauses 	in
	the
	collective
negotiating
	agreement.
The
	hearing
	officer
	found
	that
	the
	charge
	was
	not
time-barred
	because
	the
	District
	failed
	to
	timely
	assert
	the
defense
	in
	answer
	to
	the
	original
	charge 	or 	the
	amended
charge.
	He
	concluded:
By
	its
	failure
	to
	timely 	plead 	the
	statute
of
	limitations
	or
	to
	provide 	evidence
	of
extraordinary
	circumstances 	excusing
	such
untimely
	filing,
	the
	District
	waived
	its
right 	to 	assert
	the
	statute
	of
	limitations
as
	an
	affirmative
	defense.
The
	hearing
	officer
	found
	that
	Education
	Code
	section
	23922
did 	not
	require 	the
	District
	to 	act
	unilaterally
	because
"unless
	the
	statutory
	language
	clearly
	evidences
	an
	intent 	to
set
	an
	inflexible
	standard
	of
	insure
	immutable
	provisions, 	the
negotiability
	of
	a
	proposal 	should 	not
	be
	precluded.
	Since
nothing
	in
	Education
Code
	section
	23922
	impelled
	a
	governing
board
	to
	take
	unilateral 	action,
	the
	Distrtict
	should
	have 	met
both 	of
	its
	obligations
	by
	promulgating 	the 	rules
	and
regulation
	through 	the
	negotiating 	process." 	(Citations
omitted.)
Finally,
	the 	hearing
	officer
	found
	that
	the 	Association 	did
not
	contractually
	waive
	its
	right 	to 	negotiate
	because
	"neither
the 	language 	of 	Article
	XIV 	nor
	the 	bargaining 	history
indicates 	that 	the 	Association
	has
	clearly
	and
	unmistakably
waived
	its
	right 	to 	negotiate 	the 	change
	in 	evaluation
procedures 	In 	addition, 	the Association 	did 	not 	waive
3

its 	right 	to 	negotiate 	by 	any 	other 	demonstrated
behavior 	..• 	even 	if 	this 	zipper 	clause 	could 	be 	construed
to 	preclude 	the 	Association 	from 	demanding 	negotiations 	during
the 	life of 	the 	agreement, 	it 	cannot 	be 	seen 	to 	grant 	the
District 	the 	right 	to make 	unilateral 	changes 	in 	matters 	within
the 	scope 	of 	representation."
FACTS
The 	Board 	has 	reviewed 	the 	entire 	record 	in 	this 	matter,
including 	the 	hearing 	officer's 	findings 	of 	fact. 	Finding 	them
to 	be 	substantailly 	free 	from 	prejudicial 	error, 	we 	adopt 	and
incorporate 	them 	herein. 	We 	affirm 	the 	hearing 	officer's
conclusions 	of 	law 	insofar 	as 	they 	are 	consistent 	with 	the
discussion 	below.
DISCUSSION
The 	Association 	charged 	that 	the 	District 	refused 	to
negotiate 	"regarding 	continued 	employment 	of 	bargaining 	unit
members 	beyond 	the 	age 	of 	65" 	and 	that 	the 	District
unilaterally adopted 	policy No. 	6460 	which 	"sets 	forth 	rules
and 	regulations 	governing 	the 	certification 	of 	competency 	for
teachers 	beyond 	the 	age 	of 	65. 11 2
2charging 	Party 	Exhibit 	1 	entitled, 	"Regulation 	6460,"
provides 	in 	relevant 	part:
The 	superintendent 	shall 	evaluate 	the
employee's 	request 	•••• 	The 	evaluation
may 	include, 	but 	shall 	not 	be 	limited
4

The
	Procedure
	for
	Evaluating
Initially,
	we
	note
	that
	the
	policy
	at
	issue
	dictates
	both
the 	procedure
	and
	the
	criteria
	for
	evaluating
	the 	continued
employment
	of
	certificated
	personnel
	beyond
	the
	age
	of
	65.
Subsection 	3543.2(a)
	states
	in 	relevant
	part:
The
	scope
	of 	representation
	shall
	be
	limited
to
	matters
	relating
	to
	wages, 	hours 	of
employment, 	and
	other
	terms
	and
	conditions
of
	employment.
	"Terms 	and
	conditions
	of
employment" 	mean
	•••
	procedures
	to
	be
	used
for 	the
	evaluation
	of 	employees
	..•
to,
	any
	or
	all
	of 	the
	following
	factors:
1.
	The
	capabilities
	of
	the
employee.
2.
	The
	employee's
	effectiveness
as
	a
	teacher
•
3.
	The
	employee's 	classroom
management 	and
	control.
4.
	The
	employee's
	professionalism.
5.
	The
	employee's 	planning
	and
preparation.
6. 	The
	employee's mental
	and
physical 	heal
th.
The
	policy 	also 	requires
	employees
	who
	wish
to 	continue
	employment
	to
	file
	a
	writtenrequest 	with 	the 	superintendent 	before
December 	31
	of 	the 	year
	in
	which
	he/she
turns
	65.
	It
	also
	allows
	an 	employee
	torequest
	reemployment
	for
	all
	or
	part
	of
	thenext 	school 	year
	and
	provides 	thatretirement
	can 	become
	effective 	prior 	to 	thecompletion 	of
	a
	school 	year.
5

Thus, 	those 	aspects 	of 	Policy No. 	6460 	which 	set 	forth 	the
procedure 	for 	evaluating 	certificated 	employees 	are
negotiable.3
The 	Criteria 	for 	Evaluating
The 	face 	of 	the 	charge, 	as 	well 	as 	the 	record 	before 	the
Board, 	demonstrates 	that 	the 	Association 	sought 	negotiations
concerning 	the 	entire 	policy, 	including 	the 	criteria 	the
District 	would 	employ 	in 	determining 	whether 	to 	continue 	the
employment 	of 	certificated 	personnel 	over 	the 	age 	of 	65.
In Anaheim Union High 	School District 	(10/28/81) 	PERB
Decision 	No. 	177, 	the 	Board 	developed 	a 	test 	for 	determining
whether 	a 	subject 	not 	specifically 	enumerated 	in 	section 	3543.2
is 	within 	scope. 	In Holtville 	Unified 	School 	District
(9/30/82) 	PERB 	Decision No. 	250, 	rev. 	den. 	(11/19/82) 	4 Civil
No. 	28419, 	hg. 	den. 	(12/8/82), 	the 	Board 	applied Anaheim, 	supra
to 	conclude 	that 	the 	criteria 	to 	be 	used 	in 	determining 	whether
to 	terminate 	employees 	who 	have 	reached 	70 	years 	of 	age 	is
negotiable. 	The 	Board 	stated:
•.. 	we 	find 	that 	the 	subject 	of 	mandatory
retirement 	clearly 	is 	of 	concern 	to 	both
3They 	are: 	(1) 	the 	employee 	must 	submit 	by 	December 	31 	a
request 	to 	continue, 	(2) 	a 	physical 	and/or 	psychological
examination may 	be 	required, 	(3) 	the 	board 	considers 	the 	matter
in 	executive 	session, 	(4) 	the 	decision 	of 	the 	board 	is 	final,
(5) 	failure 	to 	submit 	a 	request 	results 	in 	retirement 	and
(6) 	for 	the 	1978-79 	school 	year 	the 	request 	must 	be 	submitted
by 	April 	1, 	1978.
6

management 	and 	employees 	and 	likely 	to
create 	conflict 	because 	of 	its 	profound
effect 	on 	a 	most 	fundamental 	aspect 	of
employer-employee 	relations 	-- 	termination
of 	employment. 	Further, 	the 	process 	of
collective 	negotiations 	is 	a 	viable 	means 	of
resolving 	such 	disputes 	since 	it 	furthers
the 	statutory objective 	of 	bringing 	a 	matter
of mutual 	vital 	concern 	within 	the 	framework
of 	peaceful, 	private 	resolution 	and 	provides
employees 	with 	the 	opportunity 	to 	dissuade
the 	employer 	or 	offer 	alternatives 	to 	the
employer's 	chosen 	course 	of 	action.
Anaheim 	requires 	that 	the 	Board 	exclude 	from
scope 	those 	matters 	which 	so 	lie 	at 	the 	core
of 	entrepreneurial 	control 	or 	which 	are 	of
such 	fundamental 	policy 	that 	the 	duty 	to
bargain 	about 	them 	would 	significantly
abridge 	the 	employer's 	freedom 	to 	manage 	the
enterprise 	or 	achieve 	the 	District's
mission. 	Here, 	the 	District 	has 	offered 	no
evidence 	that 	teachers 	of 	seventy years 	of
age 	or 	over, 	as 	a 	class, 	are 	incompetent 	or
otherwise 	unfit 	for 	continued
employment 	••••
The 	remaining 	prong 	of 	the 	Anaheim 	test 	is
to 	determine 	to 	which 	subjects 	enumerated 	in
section 	3543.2, 	if 	any, 	the 	subject 	of
mandatory 	retirement 	is 	reasonably 	and
logically related.
Probably 	the 	most 	fundamental 	aspect 	of 	the
employment 	relationship 	is 	its 	continuity
under 	lawful 	terms 	and 	conditions. 	Where
termination 	policies 	are 	not 	the 	result 	of
preemptive 	statutory 	requirement,
the 	employee 	loses 	his 	job at 	the
commmand 	of 	the 	employer; 	•.•
the 	effect 	upon 	the 	"conditions"
of 	the 	person's 	employment 	is 	that
the 	employment 	is 	terminated; 	and,
we 	think 	•.• 	the 	affected
employee 	is 	entitled 	under 	the 	Act
to 	bargain 	collectively 	through
his 	duly 	selected 	representatives
concerning 	such 	termination.
Inland 	Steel 	Co. 	1948 	77 	NLRB 	1
7

[21 	LRRM 	1316], 	enforced 	(7th 	Cir.
1948) 	170 	F.2nd 	247 	[22 	LRRM
2505], 	cert. 	denied 	(1949) 	356
U.S. 	960 	[24 	LRRM 	2019].
The 	retirement 	policy 	at 	issue 	in 	Holtville, 	supra, 	vested
three 	district-appointed 	educators 	with 	complete 	discretion 	to
11 consider 	the 	competency 	of 	teachers 	. 	• 	• 	who 	wish 	to
continue. 11 	Thus, 	unlike 	Policy No. 	6460, 	specific 	er i ter i a 	and
procedures 	were 	not 	established 	as 	part 	of 	the 	Holtville
District's 	policy. 	Nonetheless, 	in 	concluding 	that 	both
aspects 	were 	negotiable 	the 	Board 	held:
Because 	of 	the 	pervasive 	impact 	of 	compelled
retirement 	on 	the 	subjects 	enumerated 	in
section 	3543.2, 	we 	cannot 	limit 	negotiation
of 	such 	a 	policy 	to 	the 	procedures 	to 	be
employed 	in 	determining 	whether 	aged
employees 	are 	to 	be 	retained 	or 	terminated.
To 	so 	limit 	bargaining 	is 	to 	give 	management
virtually 	unlimited 	and 	total 	control 	over
this 	fundamental 	employment 	relationship
which 	the 	Legislature 	intended 	to 	be 	subject
to 	the 	collective 	negotiation 	scheme.
Without 	the 	opportunity 	to 	negotiate 	the
standards 	for 	compelled 	retirement, 	the
employee 	would 	be 	limited 	to 	little 	more
than 	deciding 	through 	which 	door 	he 	or 	she
must 	exit.
In 	this 	matter, 	the 	hearing 	officer 	did 	not 	address 	the
distinction 	between 	criteria 	and 	procedure. 	Instead 	he 	found
the 	entire 	policy 	to 	be 	within 	scope. 	Upon 	review, 	however,
the 	dual 	nature 	of 	the 	policy 	is 	noted.
Policy 	No. 	6460 	states 	that:
•.. 	the 	evaluation may 	include, 	but 	shall
not 	be 	limited 	to 	any 	or 	all 	of 	the
following 	factors:
8

1. 	The 	capabilities 	of 	the 	employee.
2. 	The 	employee's 	effectiveness 	as 	a
teacher.
3. 	The 	employee's 	classroom 	management
and 	control.
4. 	The 	employee's 	professionalism.
5. 	The 	employee's 	planning 	and
preparation.
6. 	The 	employee's 	mental 	and 	physical
health.
These 	six 	factors 	amount 	to 	criteria 	for 	determining
competency 	to 	continue 	employment 	because 	they 	establish 	the
areas 	the 	District 	will 	evaluate. 	As 	such 	they 	are 	negotiable
because 	they 	relate 	to 	wages, 	hours 	and 	terms 	and 	conditions 	of
employment. 	This 	matter 	is 	of 	such 	concern 	to 	both 	the
employees 	and 	the 	employer 	that 	conflict 	is 	likely 	to 	occur 	for
it 	touches 	the 	most 	fundamental 	aspect 	of 	the 	employment
relationship, 	its 	continuity. 	The 	mediatory 	influence 	of
collective 	negotiations 	would 	help 	to 	assure 	that 	all 	concerned
have 	the 	opportunity 	to 	discuss 	a 	matter 	of 	mutual 	interest
within 	the 	framework 	of 	peaceful, 	private 	resolution. 	Finally,
the 	evidence 	does 	not 	indicate 	that 	these 	six 	items 	are 	issues
of 	fundamental 	policy 	which 	would 	significantly 	abridge 	the
employer's 	freedom 	to 	manage 	the 	enterprise 	or 	achieve 	its
mission. 	We 	conclude, 	therefore, 	that 	Policy 	No. 	6460 	in 	its
entirety, 	including 	both 	the 	procedure 	and 	the 	criteria 	to 	be
employed 	in 	evaluating 	the 	competency 	of 	employees 	over 	65 	to
continue 	employment 	was 	negotiable.
9

The 	Charge 	Was 	Not 	Barred
The 	District 	asserted 	at 	trial 	and 	on 	exception 	that 	the
charge 	in 	this 	matter 	was 	time-barred 	by 	the 	six-month 	statute
of 	limitations 	contained 	in 	subsection 	3541.5(a) (1)4 	and 	PERB
regulation 	32640(f). 5 	The 	District 	did 	not 	raise 	this
defense 	in 	either 	its 	initial 	answer 	or 	in 	its 	answer 	to 	the
Association's 	amended 	charge. 	This 	defense 	was 	raised 	by 	the
District 	for 	the 	first 	time 	during 	the 	Association's 	case 	in
chief 	at 	the 	unfair 	labor 	practice 	hearing.
The 	hearing 	officer 	made 	two 	discrete 	findings 	concerning
the 	statute 	of 	limitations 	defense. 	He 	found 	the 	District 	had
4subsection 	3541. 5 (a) (1) 	states:
Any 	employee, 	employee 	organization, 	or
employer 	shall 	have 	the 	right 	to 	file 	an
unfair 	practice 	charge, 	except 	that 	the
board 	shall 	not 	do 	either 	of 	the 	following:
(1) 	issue 	a 	complaint 	in 	respect 	of 	any
charge 	based 	upon 	an 	alleged 	unfair 	practice
occurring 	more 	than 	six 	months 	prior 	to 	the
filing 	of 	the 	charge; 	•.•
SPERB 	regulations 	are 	codified 	at 	California
Administrative Code, 	title 	8, 	section 	31001, 	et 	seq. 	PERB
regulation 	32640(f) 	was 	amended 	effective 	September 	20, 	1982.
The 	identical 	rule 	is 	now 	contained 	at 	32644(c) (6) 	of 	the
regulations.
PERB 	regulation 	32640(f) 	stated:
The 	answer 	••• 	shall 	contain 	. 	. 	. ..
(f) 	A statement 	of 	any 	affirmative 	defense;
10

waived
	its
	right
	to
	assert
	the
	statute
	of
	limitations
	because
of
	its
	failure 	to
	timely
	raise
	it
	or
	demonstrate
	extraordinary
circumstances 	excusing
	the
	failure
	as
	required
	by
	subsection
3541.5(a)
(1)
	and
	PERB
	Regulation 	32640(f).
	Additionally,
	he
concluded
	that
	the
	violation 	asserted,
	the
	refusal 	to
	meet 	and
negotiate
	concerning
	Policy
	No.
	6460,
	was
	such
	that
	courts
would
	consider
	it
	continuing 	in
	nature.
	Thus,
	he 	found
	that
the
	"statute
	of
	limitations
	does
	not
	apply
	to
	the 	continuing
violation
	occurring 	within
	six
	months
	prior 	to
	the
	filing
	of
this
	charge.
11
6
It
	is
	a
	well-settled 	principle
	of
	California
	law
	that
	the
statute
	of
	limitations 	is
	a
	personal
	privilege
	which 	must
	be
affirmatively
	invoked
	by
	appropriate 	pleading 	or
	it
	is
	waived.
3
Witkin Cal.Procedure
	(2d. 	ed)
	Procedure
	section
	939.
	The
defense
	must
	be
	asserted 	either
	by
	demurrer 	or
	affirmatively 	in
the
	answer.
	Stafford 	v. 	Russell
	(1953) 	117
	CA
	2d
	319.
	Thus,
under
	Califoria
	law, 	the
	District
	waived
	this
	defense
	by
failing
	to 	raise
	it
	in
	a
	timely 	fashion. 	Travelers
	Indemnity
Co.
	v. 	Bell
	(1963) 	213
	Cal.App.2d
	541;
	Mitchell 	v.
	County
Sanitation District
	(1957) 	150
	Cal.App.2d 	366.
	PERB
	regulation
32640(f)
	is
	in
	accord 	with
	California
	civil
	procedure.
6since
	we
	conclude
	that
	the
	District's 	failure 	to
	timely
plead
	waived
	its
	right 	to 	assert 	the
	statute
	of
	limitations
	asa
	defense,
	it
	is
	unnecessary
	to
	reach
	this 	finding 	of 	the
hearing
	officer.
	Thus
	this
	conclusion 	concerning 	the
continuing 	violation 	theory
	was 	not 	considered
	by
	the
	Board 	andwe
	reserve
	comment
	until
	a 	time 	when
	the 	issue 	is 	squarely
before 	us. 
11

In 	the 	federal 	sector, 	the 	courts 	require 	affirmative
defenses 	be 	raised 	in 	the 	answer 	or, alternatively,by motion 	to
dismiss 	or 	for 	summary 	judgment. 	5 	Federal 	Practice 	and
Procedure, 	Wright 	and 	Miller, 	300. 	Similarly, 	the 	National
Labor 	Relations 	Board 	(NLRB), 	interpreting 	section 	l0(b) 	of 	the
National 	Labor 	Relations 	Act 	which 	is 	virtually 	identical 	to
section 	3541.5(a) 	of 	EERA, 	holds 	that 	the 	statute 	of
limitations 	is 	not 	jurisdictional 	but 	is 	an 	affirmative 	defense
which must 	be 	timely 	raised 	in 	the 	answer 	or 	it 	is 	waived.
Chicago 	Roll 	Forming 	Corp. 	(1967) 	167 	NLRB 	916, 	(66 	LRRM 	1228]
NLRB 	v. 	A. 	E. 	Nettleton 	Co. 	(2nd 	Cir 	1957) 	241 	F2d 	130.7
The 	District's 	additional 	contention on 	exception
concerning 	the 	statute 	of 	limitation, 	appears 	to 	assert 	that
the 	hearing 	officer 	should 	not 	have 	relied 	on 	facts 	that
occurred 	before 	the 	six-month 	period 	preceding 	the 	filing 	of
the 	charge. 	This 	exception 	fails 	to 	take 	into 	account 	a
well-settled 	principle 	of 	law. 	The 	application 	of 	the 	policy
and 	procedure 	for 	certifying 	the 	competency 	of 	employees
occurred 	well 	within 	the 	statutory 	period. 	The 	District's
earlier 	conduct 	is 	considered 	only 	for 	the 	purpose 	of
clarifying 	the 	conduct 	at 	issue 	today. 	Events 	occurring
71t 	is 	appropriate 	for 	the 	Board 	to 	take 	guidance 	from
federal 	labor 	law 	precedent 	when 	applicable 	to 	public 	sector
labor 	relations 	issues. 	Firefighters 	Union, 	Local 	1186 	v. 	City
of Vallejo 	(1974) 	12 Cal.3d 	608 	(116 	Cal.Rptr. 	507] ~
Los 	Angeles 	County Civil 	Service 	Commission 	v. 	Superior 	Court
(1978) 	23 	Cal.3d 	65 	[151 	Cal.Rptr. 	547].
12

outside 	the 	six-month 	statute 	may 	be 	relied 	upon 	to 	shed 	light
on 	the 	actionable 	conduct. 	Potlatch 	Forests 	Inc., 	87 	NLRB
1193, 	[25 	LRRM 	1192]; 	Local 	1418, 	International 	Longshoreman's
Association 	102 	NLRB 	720 	[31 	LRRM 	1365]; 	NLRB 	v. 	General 	Shoe
Corp. 	192 	F2d 	504 	[29 	LRRM 	2112].
The 	Education Code 	did 	not 	Require 	the 	District 	to Act
Unilaterally
The 	District 	asserts 	that 	the 	portion 	of 	Education Code
section 	23922 	which 	allowed 	the 	governing 	board 	of 	a 	school
district 	to 	adopt 	rules 	concerning 	the 	certification of
competency 	of 	employees 	over 	65 	years 	of 	age 	gave 	the 	District
the 	power 	to 	adopt 	a 	certification 	policy without 	negotiating
with 	the 	Association.8
The 	Board 	has 	reviewed 	the 	record 	in 	light 	of 	the 	hearing
officer's 	findings 	of 	fact 	and 	conclusions 	of 	law 	respecting
this 	issue. 	The 	Board 	finds 	that 	they 	are 	substantially 	free
from 	prejudicial 	error; 	thus 	we 	adopt 	and 	incorporate 	them
herein.
8Education 	Code 	section 	23922 	provided 	in 	relevant 	part:
•.• 	any member 	who 	has 	attained 	age 	65 	and
desires 	to 	continue 	in 	employment 	beyond 	the
age 	of 	normal 	retirement 	shall 	have 	the
right 	to 	do 	so 	upon 	the 	certification 	by 	his
employer 	pursuant 	to 	rules 	and 	regulations
adopted 	by 	each 	respective 	retirement 	board
or 	governing 	body 	that 	he 	is
competent 	.•• 	{Added 	by 	Stats 	1977,
c. 	852 	section 	2, 	effective 	9/16/77,
repealed 	by 	Stats 	1979, 	c.796 	section 	13
effective 	9/5/79.)
13

The 	Association 	did 	not 	Contractually Waive 	its Right 	to
Negotiate 	This 	Issue
The 	District 	asserts 	that 	the 	Association 	waived 	its 	rights
to 	negotiate 	this 	issue 	by 	agreement 	to Article 	XIV 	-
Conclusiveness 	of 	Agreement 	and 	Article 	II 	- 	Retained 	Rights,
Provisions 	in 	the 	Contract.9
The 	Board 	has 	reviewed 	the 	record 	in 	light 	of 	the 	hearing
officer's 	findings 	of 	fact 	and 	conclusions 	of 	law 	respecting
this 	issue. 	The 	Board 	finds 	that 	they 	are 	accurate 	and
substantially 	free 	from 	prejudicial 	error, 	thus 	we 	adopt 	and
incorporate 	them 	herein.
9Article 	II 	provides 	in 	pertinent 	part:
1.0 	It 	is 	understood 	and 	ackowledged 	that
the 	Board 	retains 	and 	reserves 	unto 	itself
all 	powers, 	rights, 	authority, 	duties 	and
responsibilities 	conferred 	upon 	and 	vested
in 	it 	by 	the 	statutes 	of 	the 	State 	of
California.
2.0 	The 	rights 	of 	management 	not 	expressly
limited 	by 	the 	clear 	and 	explicit 	language
of 	this Agreement 	are 	expressly 	reserved 	to
the 	Board 	even 	though 	not 	enumerated, 	and
the 	express 	provisions 	of 	this 	Agreement
constitute 	the 	only 	contractual 	limitations
upon 	the 	Board's 	rights.
Article 	XIV provides:
During 	the 	term 	of 	this 	Agreement, 	both
parties 	expressly waive 	and 	relinquish 	the
right 	to 	meet 	and 	negotiate 	and 	agree 	that
either 	party 	shall 	not 	be 	obliged 	to 	meet
and 	negotiate, 	except 	by 	mutual 	consent 	of
both 	parties, 	with 	respect 	to 	any 	subject 	or
matter 	referred 	to 	or 	covered 	in 	this
Agreement.
14

The 	Issue 	of 	the 	Negotiability 	of 	Policy No. 	6460 	is 	Not Moot
Finally, 	the 	District 	asserts 	that 	the 	issue 	of 	whether
Policy No. 	6460 	is 	negotiable 	is 	moot 	because 	of 	subsequent
legislation.10
The 	Board 	has 	reviewed 	the 	record 	in 	light 	of 	the 	hearing
officer's 	findings 	of 	fact 	and 	conclusions 	of 	law 	respecting
this 	issue. 	Additionally, 	the 	Board 	notes 	that 	pursuant 	to 	the
Board's 	holding 	in 	Holtville, 	supra, 	p. 	10, 	the 	duty 	to 	bargain
is 	not 	suspended 	by 	Education 	Code 	section 	44906, 	which
provided 	at 	the 	relevant 	time:
Except 	in 	districts 	situated 	wholly or
partly 	within 	the 	boundaries 	of 	a 	city 	or
city 	and 	county where 	the 	charter 	of 	the
city 	or 	city 	and 	county 	provides 	an 	age 	at
which 	employees, 	including 	certificated
employees 	of 	the 	districts, 	shall 	be
retired, 	when 	a 	permanent 	or 	probationary
employee 	reaches 	the 	age 	of 	65 	years, 	his
permanent 	or 	probationary 	classification
shall 	cease 	and 	thereafter 	employment 	shall
be 	from 	year 	to 	year 	at 	the 	discretion 	of
the 	governing 	board.11
l0see 	footnote 	8, 	infra.
llsection 	44906 	was 	amended 	by 	Stats 	1979, 	c.471,
p. 	1628, 	section 	2, 	effective 	September 	5, 	1979, 	to 	require:
Except 	in 	districts 	situated 	wholly or
partly 	within 	the 	boundaries 	of 	a 	city 	or
city and 	county where 	the 	charter 	of 	the
city 	or 	city 	and 	county 	provides 	an 	age 	at
which 	employees, 	including 	certificated
employess 	of 	the 	districts, 	shall 	be
retired, 	when 	a 	permanent 	or 	probationary
employee 	reaches 	the 	age 	of 	••• 	70 	years,
15

THE 	REMEDY
The
	hearing
	officer
	ordered
	the
	District 	to
	"offer
reinstatement
	•..
	to
	any
	certificated
	employee
	•••
	who 	was
denied 	such
	employment 	by
	virtue
	of
	the
	implementation 	of
policy
	6460."
	He
	was
	without
	authority
	to
	order
	this
	remedy.
Section
	44906
	of
	the
	Education
Code
	required
	that
	certificated
employees' 	permanent
	status
	and
	classification
	be
	terminated
and
	section
	23922
	required
	that 	their
	competency
	be
	certified
in
	order
	to
	continue
	employment.
	However,
	since
	the
	Code
	did
not
	mandate
	total
	dismissal
	and
	since
	employees
	were,
nevertheless,
	dismissed
	in 	contravention 	of 	the
	District's
	duty
to 	negotiate
	without
	any 	showing 	of
	cause,
	it
	is
	appropriate 	to
provide 	the
	means 	by
	which
	the
	employees
	may 	be 	made 	whole
while
	at
	the
	same
	time
	protecting 	the
	District
	from
	the
obligation 	to
	continue 	the
	services
	of
	employees
	who
	might
	have
been
	terminated
	if
	the
	District's 	initial
	action
	were
	lawful.
The 	Board
	finds
	it
	appropriate 	to
	order
	that
	Mrs.
	Gallucci
be
	paid
	at
	the
	rate
	she
	would 	have
	received
	had
	she
	been
reemployed 	as
	a
	year-to-year 	teacher
	from
	the 	date
	she
	would
have 	been
	so 	reemployed,
	less
	any
	retirement 	benefits
	she
received,
	until
	one
	of 	the 	following 	conditions
	is
	met:
his
	or 	her 	permanent 	or 	probationary
classification 	shall
	cease
	and
	thereafter
employment
	shall
	be 	from 	year
	to
	year
	at 	the
discretion
	of 	the 	governing 	board.
16

1.
	The
	status
	of
	Mrs.
	Gallucci
	is
	determined
	pursuant
	to
a
	negotiated
	procedure 	for
	mandatory
	retirement
	which
	conforms
to
	Education
	Code 	44906
	or
	after 	final
	impasse 	has
	been
reached, 	or
2.
	The
	status
	of
	Mrs.
	Gallucci
	is
	determined
	pursuant
	to
a
	settlement
	agreement
	reached
	by
	the
	parties.
The
	Board
	will
	also
	order 	the
	District
	to
	cease
	and
	desist
from
	further
	implementation 	of
	its
	unlawful
	unilateral
	policy
and
	direct
	the
	parties
	to 	negotiate
	a
	procedure 	for
	mandatory
retirement
	upon
	request.
	The
	District
	will 	also
	be
	required
	to
post
	a
	Notice
	to
	Employees.
ORDER
Based 	on
	the
	entire
	record
	in
	this
	case,
	the 	Public
Employment
	Relations
	Board
	finds 	that
	the
	Walnut
	Valley 	Unified
School
	District
	violated 	subsections 	3543.S{a),
	{b),
	and 	{c) 	by
unilaterally
	adopting
	an
	evaluation 	policy
	governing 	the
issuance 	of
	certificates
	of 	competence
	to
	certificated
employees 	over
	the
	age
	of
	sixty-five
	{65) 	and 	by
	refusing 	to
negotiate
	such
	policy
	with
	the
	Walnut
	Valley Teachers
Association, 	the 	exclusive 	representaive 	of
	certificated
employees,
	and 	by
	terminating
	employee 	Helen
	Gallucci, 	pursuant
to
	such 	unlawful
	unilateral 	policy.
	The 	Board
	ORDERS
	that:
The Walnut
	Valley 	Unified 	School
	District 	shall:
17

A.
	CEASE
	AND
	DESIST
	from:
(1)
	Implementing
	its
	unilateral
	procedure 	for
evaluating
	the
	competency
	of
	employees
	over
	the
	age
	of
	65;
	and
(2)
	Refusing
	to
	negotiate
	with
	the
	Walnut
	Valley
Teachers
	Association
	about
	a
	procedure
	for
	evaluating
	the
competency
	of
	certificated
	employees
	of 	the
	District
	over
	the
age
	of
	65.
B.
	TAKE 	THE
	FOLLOWING
AFFIRMATIVE 	ACTION:
(1) 	Pay
	to
	Helen
	Gallucci 	the
	sum
	of
	money
	she
	would
have
	received
	had
	she
	been 	reemployed
	as
	a
	year-to-year 	teacher
from
	the 	date 	she
	would 	have
	been
	so
	reemployed
	until
	the
District
	determines
	that
	she
	shall
	be
	terminated
	or
	employed
	as
a
	year-to-year 	teacher,
	pursuant 	to 	procedures
	to
	be
	negotiated
by
	the
	parties
	or
	until
	the
	parties
	settle
	the 	dispute
	or 	reach
final
	impasse.
	This
	sum
	shall
	be
	reduced
	by
	the
	amount
	of
retirement 	benefits
	she
	received,
	if
	any,
	and 	augmented 	by
payment
	of
	interest 	at
	the
	rate
	of
	7
	percent
	per
	annum.
(2)
	Post
	a 	copy
	of
	the 	Notice 	attached 	hereto
	as
Appendix 	A
for
	a
	period 	of
	thirty
	(30)
	consecutive
	workdays
commencing
	ten
	(10)
	days
	after 	service 	of
	this
	Decision
	and
Order 	upon
	the
	District.
(3)
	Notify 	the 	regional
	director,
	Los
	Angeles
Regional
	Office, 	within 	twenty 	(20)
	calendar
	days
	thereafter 	of
the 	steps
	it
	has 	taken
	in
	compliance 	with
	this
	Order.
Chairperson Gluck 	and Member 	Tovar 	joined 	in 	this 	Decision.
18

APPENDIX 	A
NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER OF 	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARDAN
	AGENCY 	OF 	THE
	STATE
	OF
	CALIFORNIA
After
	a
	hearing
	in
	the
	Unfair
	Practice
	Case
	No. 	LA-CE-516,
Walnut
	Valley 	Educators
	Association 	v.
	Walnut
	Valley 	Unified
School
	District,
	in
	which
	both
	parties 	participated,
	it
	has
been 	found
	that
	the
	Walnut
	Valley 	Unified
	School
	Distirct
violated
	subsections 	3543.5(a),
	(b) 	and 	(c)
	of
	the 	Educational
Employment
	Relations
	Act
	by
	unilaterally
	adopting
	an
	evaluation
policy
	governing 	the
	issuance 	of
	certificates
	of
	competency
	to
employees 	over
	the
	age
	of
	sixty-five
	(65) 	and 	by
	terminating
one
	certificated
	employee
	pursuant
	to
	that
	policy.
	As 	a
	result
of 	these
	actions,
	we
	have
	been
	ordered 	to 	post
	this
	Notice
	and
abide
	by
	the
	following:
A.
	CEASE
	AND
	DESIST
	from:
(1)
	Implementing
	the
	unilateral
	procedure 	for
evaluating
	the
	competency
	of
	employees 	over
	the
	age
	of
	65
years;
	and
(2)
	Refusing 	to
	negotiate
	with
	the
	Walnut
	ValleyTeachers
	Association
	about
	a
	procedure 	for 	evaluating 	the
competency
	of
	certificated
	employees
	of 	the
	District
	over 	the
age
	of
	65.
B.
	TAKE
	AFFIRMATIVE 	ACTION 	TO:
Pay 	Helen
	Gallucci
	at
	the
	rate
	she
	would 	have
	received
	had
she
	been 	reemployed
	as
	a
	year-to-year 	teacher
	from
	the 	date
	she
would 	have
	been 	so 	reemployed,
	less
	any
	retirement 	benefits
	she
received,
	until
	the 	date
	when
	one
	of 	the 	following
	conditions
is
	met: 
(1) 	The
	status
	of
	Mrs.
	Gallucci
	is
	determined
pursuant 	to
	a
	negotiated 	procedure 	for
	mandatory
	retirement
which 	conforms
	to 	Education
	Code 	44906
	or
	after 	final
	impasse
has 	been
	reached.
(2)	
The
	status 	of
	Mrs.
	Gallucci 	is
	determined
pursuant 	to
	a
	settlement
	agreement 	reached
	by
	the
	parties.
19

This 	sum 	shall 	be 	augmented 	by 	payment 	of 	interest 	at 	the
rate 	of 	7 	percent 	per 	annum.
WALNUT VALLEY 	UNIFIED 	SCHOOL 	DISTRICT
By Authorized 	Agent 	of 	the 	District
Dated:
THIS 	IS 	AN 	OFFICIAL 	NOTICE. 	IT 	MUST 	REMAIN 	POSTED FOR 	THIRTY
{30) 	CONSECUTIVE WORKDAYS 	FROM 	THE 	DATE OF 	POSTING 	AND 	MUST 	NOT
BE 	REDUCED 	IN 	SIZE, 	DEFACED, 	ALTERED OR COVERED BY ANY MATERIAL.
20

ORIGINAL
	PROPOSED
	DECISION
NOT
	ATTACHED
	TO
	FINAL
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
OF 	THE
	STATE
	OF
	CALIFORNIA
WALNUT
	VALLEY EDUCATORS
ASSOCIATION,
Charging
	Party,
v.
WALNUT
	VALLEY
	UNIFIED
	SCHOOL
DISTRICT,
Respondent.
)
)
)
)
)
)
)
)
)
)
)
___________________
)
Unfair
	Practice
Case
	No. 	LA-CE-516
PROPOSED
	DECISION
(10/22/80)
Appearances: 	Sandie
	Paisley,
	Attorney 	for
	Walnut
	ValleyEducators
	Association; 	Patrick 	Sisneros,
	Attorney	
(Wagner 	&
Wagner)
	for
	Walnut
	Valley 	Unified
	School
	District.
Before
	Bruce
	Barsook, 	Hearing
	Officer.
PROCEDURAL
	HISTORY
On
	September
	7,
	1979,
	the
	Walnut
	Valley 	Educators
Association
	(hereafter
	Association)
	filed
	an
	unfair
	practice
charge
	against 	the
	Walnut
	Valley 	Unified
	School
	District
(hereafter
	District) 	alleging
	a
	violation
	of 	section
	3543.S(b)
and 	(c)
	of 	the 	Educational
	Employment
	Relations
	Act
	(hereafter
EERA). 1	
In 	essence, 	the 	charge
	alleges 	that
	the
	District
refused 	to
	meet 	and
	negotiate
	with 	the 	Association
	by
1The
	EERA
	is
	codified 	at
	Government 	Code
	section
	3540
	et
seq. 	All 	section 	references 	are 	to 	the
	Government 	Code
	unless
otherwise 	specified.

unilaterally
	changing
	the
	evaluation
	procedures 	for
certificated
	employees
	over
	the
	age
	of
	65.
The
	Association
	amended
	its
	charge
	on
	February 	27,
	1980
	by
alleging
	a
	violation
	of
	section
	3543.S(a)
	in 	addition 	to
	its
claim
	of
	a
	violation
	of
	section
	3543.S(b)
	and	
2	
(c).
After
	an
	informal 	conference
	failed
	to 	resolve 	the
	dispute,
a
	formal
	hearing
	was
	conducted
	on
	April
	14,
	1980.
Post-hearing
	briefs
	were
	filed
	and
	the 	matter
	was
	submitted
on
	July
	14, 	1980,
	the 	date 	the
	last
	brief
	was
	filed.
FINDINGS
	OF 	FACT
At
	all
	times
	relevant 	to
	this
	case, 	the
	District
	was 	a
public
	school
	employer
	within 	the
	meaning
	of 	the
	EERA
	and
	the
Association,
	as 	the 	exclusive
	representative
	of
	the
certificated
	employees,
	was 	an 	employee
	organization 	within 	the
meaning
	of 	the	
3	
EERA.
In
	late
	1977
	or
	early
	1978,
	the 	president 	of 	the
Association, 	Charles
	Sismondo,
	learned 	of 	the
	District's
intention 	to
	adopt
	a
	policy 	regarding
	certificated
	employees
2
Although
	not
	specifically 	alleged, 	sec.
	3543.S(a) 	hasbeen
	considered 	to
	be
	alleged
	by
	virtue 	of
	the 	language
	in 	the
amended
	charge: 	"has
	additionally
	denied
	certificated
employees
	their 	right 	to
	form,
	join
	and
	participate
	in 	the
activities
	of
	employee
	organizations 	for 	the 	purpose
	of
representation
	as
	stated 	in 	sec.
	3543
	of 	the
	EERA."
3official 	notice
	has 	been 	taken 	of 	the 	Public
	Employment
Relations
	Board
	(PERB)
	representation 	case
	file
	in
	Case 	No.
LA-R-83.
2

who
	wished
	to
	continue
	their
	employment
	past
	the
	age
	of
	65.
The
	stated
	reason 	for 	the
	policy
	was
	the
	effort
	by
	the
	District
to
	conform
	to
	a
	recently
	enacted 	Education
	Code
	provision.
That
	provision,
	Education
	Code
	section
	23922,
4	
itself
	an
attempt 	to
	conform
	to
	a
	federal
	mandate
	rejecting
	mandatory
retirement
	at
	age
	65
	provided
	employees
	with
	the
	right
	to
continue
	employment
	after
	age
	65 	upon
	certification
	of 	the
"employer
	pursuant 	to
	rules
	and
	regulations
	adopted
	by
	each
respective
.••
	governing
	board."
The
	collective
	bargaining
	agreement
	then 	in
	effect
contained
	a
	provision
	on
	evaluation.
5 	The
	section 	(Article
VII)
	contained
	a
	timetable 	for 	evaluations
	and
	required
	that
all
	data 	collected
	be
	related
	to 	the
	employee's 	job
description.
	The
	District's
	proposed
	policy 	established
	a
different
	timetable
	and
	included
	a
	provision
	that
	permitted 	the
District
	superintendent, 	in 	his 	discretion,
	to 	require
	a
physical
	and/or 	mental 	examination
	of 	the
	employee.
The
	collective
	bargaining
	agreement
	also
	contained
provisions
	on
	Retained 	Rights
	(Article
	II)
6 	and
4Repealed,
	Stats.
	1979, 	ch.
	796,
	sec.
	13.
5Article
	VII 	- 	1977-79 	Agreement. 	Subsequent 	agreements
contain
	an
	identical
	prov
is
ion.
	-,
6Article 	II
	provides 	in
	pertinent 	part:
1.0
	It 	is
	understood
	and 	acknowledged
	thatthe
	Board
	retains
	and
	reserves 	unto
	itself
3

Conclusiveness
	of
	Agreement
	(Article
	XIV).
	Article
	XIV
provided
	that:
During
	the
	term
	of
	this
	Agreement,
	both
parties
	expressly
	waive
	and
	relinquish
	the
right
	to
	meet
	and
	negotiate
	and
	agree
	that
either
	party
	shall
	not
	be
	obliged
	to
	meet
and
	negotiate,
	except
	by
	mutual
	consent 	of
both
	parties,
	with
	respect 	to
	any
	subject 	ormatter
	referred
	to
	or 	covered
	in
	this
Agreement.
No
	evidence
	was
	presented
	on
	the 	bargaining
	history 	of
	the
agreement
	then
	in 	existence
	(1977-79
	contract).
	While
	there
was
	testimony
	that
	the
	identical
	provision 	in 	the
	1979-81
agreement
	was
	meant
	to 	foreclose
	either
	party
	from
	negotiating
further 	subjects
	without 	the 	concurrence
	of 	the 	other
	side,
there
	was 	no
	evidence
	presented
	indicating 	that
	the
	subject 	of
evaluations
	for
	certificated
	employees
	over
	the
	age
	of
	65 	was
ever
	negotiated.
On
	first
	learning 	of 	the
	proposed
	policy,
	the 	Association
requested
	that
	the
	District
	negotiate
	with
	it
	regarding 	the
evaluation
	procedures 	for
	certificated
	employees 	age
	65 	and
all
	powers,
	rights,
	authority,_
duties
	and
responsibilities
	conferred
	upon 	and
	vested
in
	it
	by
	the
	statutes
	of 	the
	State 	of
California.
2.0
	The
	rights 	of
	management
	not 	expressly
limited
	by
	the
	clear
	and
	explicit
	language
of 	this
	Agreement
	are 	expressly 	reserved 	to
the
	Board 	even 	though 	not 	enumerated,
	and
the 	express 	provisions 	of
	this
	Agreement
constitute
	the 	only 	contractual 	limitations
upon
	the 	Board's
	rights.
4

over.
	The
	District
	rejected
	the
	Association's
	demand
	to
negotiate
	and
	on March
	20,
	1978
	proceeded
	to
	unilaterally
	adopt
the
	challenged
	policy,
	Policy
	6460.
7
On
	May
	15,
	1978,
	the
	Association
	filed
	a
	grievance
regarding 	the
	District's
	adoption
	of 	the 	policy
	and
	its
application
	to
	a 	member
	of
	the
	negotiating
	unit,
	Helen
Gallucci.
	The
	grievance 	was.denied
	at
	Level
	1
	of 	the
	4
	level
grievance 	procedure.
	However,
	after
	the 	grievance
	was
	denied,
Mrs.
	Gallucci
	was
	granted
	a
	certificate
	of
	competence
	for 	the
1978-79
	school 	year
	and
	the 	Association 	did 	not 	pursue
	its
grievance.
Between
	May
	and 	September
	1978,
	Mr. 	Sismondo
	continued
	to
discuss
	informally
	with 	the
	District
	the 	matter 	of 	negotiating
the
	District's
	evaluation 	policy. 	Further 	requests 	to
negotiate
	were made
	orally
	on
	September
	7,
	1978 	and
	in 	writing
on
	May
	8,
	1979 	and 	August
	8,
	1979. 	These
	requests 	to 	negotiate
were
	all
	denied.
In 	spring
	1979,
	the 	challenged 	policy
	was
	applied 	again
	to
Mrs.
	Gallucci,
	this
	time
	for 	the
	1979-80
	school 	year.
	The
Association
	communicated
	with 	the
	Board
	of 	Trustees 	in 	writing
and 	made 	an
	oral 	presentation
	at
	a
	board 	executive
	meeting
?Regulations
	were
	adopted 	pursuant 	to 	the 	Policy
	and
	are
known
	as
	R6460.
5

regarding 	the 	applicable
	law 	on
	mandatory
	retirement.8
Nevertheless,
	on
	June
	11,
	1979,
	Mrs.
	Gallucci
	was
	denied
	a
certificate
	of
	competency
	for
	the
	1979-80
	school
	year.
ISSUE
1.
	Did
	the
	District's
	refusal
	to 	negotiate
	its
implementation
	of 	Policy
	6460
	violate
	section
	3543.5(a),
	(b)
	or
(c)
	of
	the
	EERA?
CONCLUSIONS
	AND
	ANALYSIS
The
	Association
	has
	alleged
	that
	the
	District's
	unilateral
implementation
	of
	a
	policy 	regulating
	the 	continued
	employment
of
	certificated
	employees
	past
	the
	age
	of
	65
	constitutes
	a
violation
	of
	section
	3543.5(a),
	(b) 	and
	(c).
Based 	on 	a
	reading
	of 	the
	Association's
	brief
	and
	the
evidence
	it
	presented 	in 	the 	hearing,
	it
	is
	apparent
	that
	its
primary 	concern
	is 	that
	the
	District's
	actions 	indicate
	a
failure
	to
	meet
	and
	negotiate
	in
	good
	faith,
	a
	violation 	of
section
	3543.5(c). 	Consequently,
	that
	issue
	shall
	be
	addressed
first
	and
	the 	subdivision
	(a) 	and 	(b)
	allegations
	discussed
later.
8Among
	other
	arguments, 	the 	Association
	argued
	that
	Gov.
Code
	sec.
	7508
	superseded
	Ed. 	Code
	sec.
	23922
	to 	the
	extent
that
	sec.
	23922
	permitted
	mandatory
	retirement 	before 	the
	age
of
	70, 	(sec.
	7508,
	effective
	January
	1,
	1979,
	prohibits
mandatory
	retirement 	of 	specified
	employees
	prior 	to 	the
	age
	of
70).
	No
	judgment
	will
	be made 	on
	the 	merits 	of 	the
Association's 	contention 	as
	it
	is 	outside 	this
	agency's
jurisdiction 	to 	enforce 	or
	invalidate
	such 	laws.
6

Section
	3543.5(c)
	provides
	that
	it
	shall
	be
	unlawful
	for
	a
public
	school
	employer
	to:
Refuse
	or
	fail
	to
	meet
	and
	negotiate
	in
	good
faith
	with
	an
	exclusive
	representative.9
Section 	3540.l(h)
	states
	that
	"meeting
	and
	negotiating"
means:
••.
	meeting,
	conferring, 	negotiating,
	and
discussing
	by
	the
	exclusive
	representative
and
	the 	public
	school
	employer
	in
	a 	good
faith 	effort
	to
	reach
	agreement
	on
	matterswithin 	the
	scope
	of
	representation
	••••
The
	scope
	of 	representation
	is
	delineated 	in 	section
	3543.2
and
	provides 	in
	pertinent 	part:
The
	scope
	of 	representation
	shall
	be
	limited
to matters
	relating
	to
	wages,
	hours
	of
employment,
	and
	other
	terms
	and
	conditions
of
	employment.
	"Terms 	and
	conditions 	of
employment" 	mean
	...
	procedures
	to
	be
	used
for 	the 	evaluation 	of
	employees
	•.••
Thus,
	in 	order 	for 	the
	District
	to
	have
	violated 	section
3543.5(c)
	it
	must 	be 	shown
	that
	it
	failed 	to 	negotiate
	with
	the
Association
	on 	a
	matter 	within 	the
	scope
	of 	representation.
9similarly, 	sec.
	8(a)
(5) 	and
	8(d)
	of 	the 	National
	Labor
Relations
	Act
	(hereafter
	NLRA),
	as
	amended, 	(29 	u.s.c.
	sec.
	151
et
	seq.)
	makes
	it
	unlawful 	for
	an 	employer
	to 	refuse 	to 	bargain
in
	good
	faith
	with
	an
	exclusive 	representative.
	Where
	state
legislation 	is 	essentially
	the
	same
	as
	federal
	legislation,federal 	precedent
	offers 	significant
	guidance
	in 	interpretingthe
	state 	statute.
	Fire 	Fighters
	Union
	v. 	City 	of Vallejo
(1974) 	12
	Cal.3d
	608 	[116
	Cal.Rptr.
	507,
	87
	LRRM
	2453].
	San
Francisco 	Unified 	School
	District
	(10/3/78) 	PERB.DecisionNo.75.
	Federal 	precedent 	will
	thus
	be
	cited
	where
	guidance 	and
interpretation 	is 	appropriate.
7

It
	is
	uncontroverted
	that
	the
	District
	did 	not
	meet 	and
negotiate
	with
	the
	Associaton
	on
	the
	District's
	implementation
of
	the
	policy 	regulating
	the
	continued
	employment
	of
certificated
	employees
	past
	the
	age
	of
	65. 	Furthermore,
	it
	is
evident
	that
	the 	process
	used
	by
	the
	District
	to
	determine
	the
continued
	status
	of
	certificated
	employees
	past
	the
	age
	of
	65
relates
	to 	the 	"procedures
	to
	be
	used
	for 	the
	evaluation
	of
employees."
	For 	example,
	Policy
	6460
	provides 	for
	a
	timetable
for 	evaluating
	affected
	employees
	different
	from
	that
	provided
for
	in
	the
	parties'
	contract.
Were
	the 	examination
	to
	end
	here, 	the
	District
	very
	well
may
	have 	been
	guilty
	of
	failing
	to
	meet 	and
	negotiate 	in
	good
faith
	with
	the 	Association.
	However,
	the
	District
	poses
	a
number
	of 	defenses
	which
	it
	believes
	excuses
	it
	from
liability.
	An
	examination
of
	these 	defenses
	is
	therefore 	in
order.
The
	District
	first
	argues
	that
	the 	Association's
	charge
	is
time-barred
	by
	the 	provisions 	of
	Government 	Code
	section
3541.S(a)
	and
	that
	the 	Association
	has
	not
	shown 	a
justification
	for
	its 	late 	filing.
	The
	District
	first
	raised
this
	defense 	during 	the 	hearing
	and
	it
	reiterated
	it
	in
	its
post-hearing
	brief.
Section 	3541.S(a) 	provides
	that
	the
	PERB
	shall
	not 	"issue
	a
complaint 	in 	respect 	of
	any
	charge 	based
	upon 	an
	alleged
unfair 	practice 	occurring
	more
	than
	six
months
	prior 	to 	the
8

filing
	of 	the
	charge.
	II
Section
	3541.5(a)
	is
	similar
	to
and
	apparently
	modeled
	after
	section
	l0(b) 	of 	the
	NLRAl0
which
	establishes
	a
	six-month
	limitation
	for 	complaints
	issued
by
	the 	general 	counsel.
	Cases
	interpreting
	section
	l0(b)
	hold
that
	the
	section
	"is
	a
	statute
	of
	limitations
	and
	is
	not
jurisdictional.
	It
	is
	an
	affirmative
	defense,
	and
	if
	not
timely
	raised,
	is
	waived."
	Chicago
	Roll
	Forming
	Corp.
	(1967)
167
	NLRB
	961,
	971 	[66
	LRRM
	1228],
	enf.
	sub.
	nom.
	NLRB
	v.
Chicago 	Roll
	Forming
	Corp. 	(7th
	Cir.
	1969) 	418
	F.2d
	346 	[72
LRRM
	2683]. 	Accord,
	Shumate
	v.
	NLRB
	(4th
	Cir.
	1971) 	452
	F.2d
717 	[78
	LRRM
	2905].ll
Thus,
	the 	issue
	is
	not,
	as 	the
	District
	argues,
	whether
	the
Association 	timely
	filed
	its
	charge 	but
	whether
	the
	District
timely
	raised 	the
	statute
	of
	limitations
	as
	a
	defense.
	The
PERB's
	regulations
	provide
	at 	Title
	8,
	California
Administrative
	Code,
	section
	32635(a)
	that
	the 	respondent
"shall
	file
	with 	the
	Board 	an 	answer
	to 	the 	unfair
	practice
charge 	within
	20
	calendar
	days
	or
	at
	a
	time
	set
	by
	the
	Board
agent 	following 	the 	date 	of 	service 	of 	the 	charge
	by
	the
	Board
agent."
	The
	rules 	further
	provide
	at 	Title
	8, 	California
1029
	u.s.c.
	sec.
	160.
llsee 	also, 	Travelers
	Indemnity
	Co.
	v. 	Bell
	(1963) 	213
Cal.App.2d 	541, 	547:
	Mitchell 	v.
	County
	SanTiation
	District
(1957) 	150
	Cal.App.2d 	366, 	371.
9

Administrative
	Code,
	section
	32640(f)
	that
	the
	answer
	shall
contain
	"[a] 	statement 	of
	any
	affirmative
	defense."
The
	Association's
	original
	charge
	was
	filed
	on
September
	7,
	1979 	and 	amended
	on
	February
	27, 	1980.
	The
District
	failed
	to
	plead 	the
	statute
	of
	limitations
	in
	its
	two
answers.
	It
	was
	not
	until
	April
	14,
	1980,
	26
	days
	after
	the
time
	set
	for
	filing
	the
	answer
	to
	the
	amended
	charge,
	and
	after
the 	Association
	began
	the
	presentation 	of
	its
	case
	in
	chief,
that
	the
	District
	first
	objected 	to
	the
	introduction 	of
evidence 	about
	alleged
	unilateral
	actions
	taken
	by
	the
	District
with 	regard
	to
	the
	implementation
	of
	Policy
	6460.
By
	its
	failure
	to 	timely 	plead 	the
	statute
	of
	limita-tiohs
or 	to
	provide 	evidence
	of 	extraordinary
	circumstances 	excusing
such
	untimely
	filing,
	the
	District
	has
	waived
	its
	right
	to
	assert
the
	statute
	of 	limitations
	as
	an
	affirmative
	defense.
12
In
	any
	event,
	even
	if
	one 	assumes
	that
	the
	District 	is
	not
precluded
	from
	asserting
	the
	six-month
	statute
	of
	limitations
as
	a
	defense 	the 	nature 	of
	the
	Association's
	charge,
	a
continuing
	refusal 	to
	meet 	and
	negotiate
	over 	the 	course 	of
approximately
	20
	months,
	is
	such
	that 	courts
	would
	consider
	it
to 	constitute
	a
	continuing
	violation:
	and
	thus 	the
	statute
12The
	District's
	implied 	argument
	that
	the 	Associationshould
	be
	estopped
	from making
	its
	claim 	because
	it
	waited
almost
	18 	months
	after
	the 	promulgation 	of 	Policy
	6460
	before
filing 	its
	charge
	is 	likewise 	rejected.
10

of
	limitations
	does
	not 	apply
	to 	the 	continuing
	violation
occurring 	within
	six
	months
	prior
	to
	the
	filing
	of
	this
charge. 	Cf.
	NLRB
	v.
	Basic
	Wire
	Products,
	Inc.
	(6th
	Cir.
	1975)
516
	F.2d
	261 	[89
	LRRM
	2257]1
	NLRB
	v.
	Los 	Angeles-Yuma
	Freight
Lines
	(9th
	Cir.
	1971) 	446
	F.2d
	210 	[77
	LLRM
	3076].
The
	District's
	second 	argument
	is 	that
	the
	governing
	board
of 	the
	District
	was
	statutorily
	required 	to
	adopt
	a
	policy
	on
continuation 	of
	employment
	(Policy
	6460).
	The
	District
	notes
that
	it
	adopted
	Policy
	6460
	in
	order
	to
	conform
	to 	the
	1977
enactment
	of
	Education
	Code
	section
	23922
	(repealed
	Stats.
1979, 	ch.
	796,
	sec. 	13).
	That
	section
	provided
	in
	pertinent
part:
Notwithstanding
	any
	other
	prov1s1on
	of
	law,
any 	member
	who
	has
	attained
	age
	65 	and
desires 	to
	continue 	in
	employment 	beyond
	the
age
	of
	normal
	retirement
	shall
	have
	the
right
	to
	do
	so
	upon
	the
	certification
	by
	his
employer
	pursuant 	to 	rules
	and
	regulations
adopted
	by
	each
	respective 	retirement
	board
or 	governing
	body
	that
	he
	is
	competent
	to
	do
so
	and
	the
	filing
	of
	a
	notice
	from
	the
member 	and
	his
	employer
	that
	the
	member
	is
continuing 	in
	employment.
The
	District
	seizes
	upon
	the 	language 	"pursuant
	to 	rules
and
	regulations
	adopted
	by
	each
	•••
	governing 	board	
"
and
	argues
	that
	the
	Legislature, 	acting
	after
	passage 	of 	the
EERA,
	sought 	to 	give 	governing 	boards
	sole 	authority 	to
	adopt
such
	rules
	and
	regulations.
	The
	District's
	argument
	is
	not
persuasive.
11

As
	previously
	indicated,
	the
	rules
	and
	regulations
	adopted
to
	certify
	continued
	employment
	have
	a
	direct
	impact
	on
	the
procedures
	for 	evaluating
	employees
	and
	as
	such
	they
	are
negotiable.
	Furthermore, 	unless 	the
	statutory
	language
	clearly
evidences
	an
	intent
	to
	set
	an
	inflexible
	standard
	or
	insure
immutable
	provisions,
	the
	negotiability
	of
	a
	proposal
	should
not
	be
	precluded.
	Healdsburg
	Union 	High
	School
	District
(6/19/80)
	PERB
	Decision
	No.
	132.
	See
	also, 	Jefferson
	School
District
	(6/19/80)
	PERB
	Decision
	No. 	133~ 	Sonoma
	county
	Office
of
	Education 	(11/23/77)
	EERB
	Decision
	No.
	40.
	Since 	nothing 	in
Education
	Code
	section
	23922
	impelled
	a
	governing
	board
	to
	take
unilateral 	action,
	the
	District
	should
	have
	met
	both
	of
	its
obligations
	by
	promulgating 	the
	rules
	and
	regulations
	through
the 	negotiating 	process.
	Its
	failure
	to
	do
	so
	is
	thus 	not
excused.
The
	District's
	third
	argument
	is
	that
	the 	Association
waived 	any
	right
	it
	may 	have 	had
	to 	negotiate
	a
	policy
concerning
	continuation 	of
	employment.
	As
	support, 	the
District cites
	Article
	XIV -
	Conclusiveness 	of
	Agreement 	and
Article
	II,
	section
	2.0
	-
	Retained 	Rights.13
13Although
	sec.
	3541.5(b)
	prohibits 	the 	Public
	Employment
Relations
	Board
	(hereafter
	PERB)
	from
	enforcing
	agreementsbetween
	the
	parties,
	by
	analogy
	to 	National
	Labor
	Relations
	Act
precedent
	this
	Board may
	analyze
	a
	collective 	negotiations
agreement 	where
	necessary 	to 	the 	determination 	of
	an
	unfair
practice 	charge.
	See
	NLRB
	v.
	C & C Plywood 	(1967) 	385 	U.S. 	421
[64
	LRRM
	2065]. 	In 	addition,
	it
	should 	be 	noted
	that 	theagreement 	between 	the 	parties
	does 	not 	provide 	for 	binding
arbitration.
12

It
	has 	been
	recognized
	that
	an
	employee
	organization
	may
relinquish
	the
	statutory 	right
	to 	negotiate
	if,
	as
	part
	of 	the
negotiating 	process,
	it
	elects
	to
	do
	so.
	In
	order
	to
	prove
that
	the 	exclusive
	representative
	has
	waived
	its
	right
	to
negotiate,
	the
	employer 	must
	show
	either
	clear
	and
	unmistakable
language,
	Amador
	Valley
	Joint
	Union
	School
	District
	(10/2/78)
PERB
	Decision
	No.
	74,
	or 	demonstrative 	behavior
	waiving
	a
reasonable 	opportunity 	to
	bargain
	over
	a
	decision
	not 	already
firmly
	made 	by
	the
	employer.
	San Mateo
	County
	Community
College
	District
	(6/8/79)
	PERB
	Decision
	No.
	94.
	The
	burden
	is
on
	the
	employer
	to
	show
	that
	the 	charging
	party
	waived
	its
right
	to
	negotiate.
	San Mateo 	Community
	College
	District,
supra.
Article
	II,
	section
	2.0
14	
is 	part
	of 	the 	description 	of
management's
	retained
	rights.
	It
	applies
	only
	to matters
	"not
expressly 	limited
	by
	the
	clear
	and
	explicit
	language
	of
	this
Agreement." 	Since
	Article
	VII
	-
	Evaluation
	explicitly
	covers
the 	subject 	of 	evaluations 	of
	certificated
	employees,
	Article
II
	cannot
	be
	interpreted 	to 	authorize
	unilateral 	District
action.
Article
	XIV
	purports 	to
	be 	a
	waiver 	or 	zipper 	clause.15
The
	NLRB
	has 	given 	waiver
	clauses
	even
	greater 	scrutiny
	where
14The
	text 	of 	Article
	II,
	sec.
	2.0
	is
	found
	atfootnote 	5, 	supra.
lSThe
	text 	of 	Article
	XIV
	is
	found 	on 	p. 	3, 	supra.
13

waiver
	is 	asserted
	to
	justify 	unilateral
	action
	by
	the
employer, 	as
	opposed
	to
	a
	request
	by 	a
	union
	to
	bargain 	during
the
	term
of
	a
	contract.
	In
	New
	York
	Mirror
	(1965) 	151
	NLRB
834,
	the
	NLRB
	held
	that
	it
	"will
	not 	find
	that
	contract
	terms
of
	themselves
	confer
	on
	the
	employer
	a 	management
	right 	to
	take
unilateral
	action
	on 	a
	mandatory
	subject
	of
	bargaining 	unless
the
	contract
	expressly
	or
	by
	necessary
	implication 	confers
	such
right."
	(151
	NLRB
	at
	839-840.)
	See
	also,
	Morris,
	The
Developing
	Labor
	Law,
	pp.
	470-471.
	A
broadly
	written
	waiver
clause
	will
	be
	scrutinized
	in
	light
	of 	the
	contract
negotiations 	to
	determine
	if
	the
	union
	"consciously
	yielded"
the
	right
	to 	negotiate
	on
	the 	matter 	in 	question
	by
	inclusion
of
	the
	waiver
	language.
	New
	York
	Mirror, 	supra,
	pp. 	839-840.
In 	the
	present 	case, 	neither
	the
	language
	in
	Article
	XIV
nor
	the 	bargaining
	history 	indicates 	that
	the 	Association
	has
clearly
	and
	unmistakably
	waived
	its
	right
	to 	negotiate 	the
change
	in 	evaluation procedures.
	There
	is
	no
	mention
	of
evaluation 	of
	certificated
	employees
	over 	the
	age
	of
	65
	in
Article
	XIV
	nor
	is
	there
	evidence
	that
	the 	subject
	was
	ever
discussed 	during
	negotiations.
	Thus,
	the 	Association 	did 	not
consciously 	yield
	its
	right
	to 	negotiate
	on
	this 	particular
subject.
In 	addition, 	the 	Association 	did 	not
	waive
	its
	right 	to
negotiate
	by 	any
	other 	demonstrated 	behavior.
	To
	the 	contrary,
as 	early
	as
	December
	1977, 	the 	Association 	requested 	to
14

negotiate. 	Thereafter, 	the 	Association 	repeatedly 	made
requests 	to 	negotiate. 	Each 	request 	was 	denied.
Finally, 	even 	if 	this 	zipper 	clause 	could 	be 	construed 	to
preclude 	the 	Association 	from 	demanding 	negotiations 	during 	the
life 	of 	the 	agreement, 	it 	cannot 	be 	seen 	to 	grant 	the 	District
the 	right 	to 	make 	unilateral 	changes 	in 	matters 	within 	the
scope 	of 	representation.
The 	District's 	fourth 	defense 	is 	that 	because 	of 	subsequent
legislation 	the 	issue 	of 	negotiability of 	the 	policy 	has 	become
moot. 	The 	District 	notes 	that 	Education 	Code 	section 	23922,
which 	required 	a 	governing 	board 	to 	develop 	rules 	and
regulations 	regarding 	certification 	for 	continued 	employment
past 	ag~ 65, 	has 	been 	repealed 	and 	is 	no 	longer 	in 	effect. 	The
result, 	according 	to 	the 	District, 	is 	that 	the 	District 	is 	now
left 	with 	complete 	discretion 	to 	determine 	whether 	to 	continue
the 	employment 	of 	an 	employee 	who 	has 	reached 	the 	age 	of 	?o.16
The 	issue 	is 	not 	moot, 	however. 	It 	is 	settled 	law 	that
where 	the 	issues 	persist 	beyond 	the 	specific 	case, 	the 	case 	is
not 	rendered 	moot. 	See 	Amador 	Valley Joint 	Union 	High 	School
District, 	supra 	(and 	cases 	cited 	therein}. 	In 	Amador 	Valley,
the 	PERB 	was 	faced 	with 	a 	claim 	that 	a 	charge 	alleging 	that 	the
district 	had 	acted 	unlawfully 	by 	taking 	unilateral 	action 	on 	a
negotiable 	matter 	was 	moot 	because 	of 	an 	intervening 	settlement
16Cf. 	Ed. 	Code, 	sec. 	44906.
15

of
	the
	contract
	as 	well
	as
	a
	salary
	settlement
	in
	a
	court
action.
	In
	ruling
	that
	the
	action
	was
	not
	moot,
	the
	PERB
	noted
that
	the
	contract
	was
	prospective 	only,
	and
	although 	the
monetary
	effect
	of
	the
	action
	was
	remedied
	by
	the
	court 	order,
the 	order 	did
	not
	deal
	with
	the
	nature 	of
	the
	District's
conduct 	as
	the 	matter
	was
	not 	in
	issue
	in
	the
	civil
	suit.17
Similarly
	in
	this
	case,
	the
	intervening 	repeal 	of
	the
	statute
in 	issue
	does
	not
	resolve 	the
	issue
	of 	the
	District's
	action
(i.e.,
	taking
	unilateral
	action
	on 	a
	negotiable
	matter).
Furthermore,
	and
	unlike 	the
	situation
	in
	Amador
	Valley, 	the
adverse
	impact
	on 	an
	individual
	caused
	by
	the
	implementation
	of
Policy
	6460
	has
	not
	been
	remedied.
All
	four
	of 	the
	District's
	defenses 	to 	the
	allegation 	that
it
	did 	not
	meet 	and
	negotiate
	in
	good
	faith
	have 	been 	found
	to
be
	unpersuasive. 	Accordingly,
	it
	is
	hereby 	held
	that
	the
District
	violated 	section
	3543.S(c}
	by
	its
	unilateral
	change
	in
evaluation 	procedures.
In
	addition 	to 	alleging
	a
	violation 	of 	section
	3543.S(c},
the 	Association
	has
	also 	alleged 	that 	this
	same
	conduct
	also
violated 	section
	3543.S(a)
	and
	(b). 	Section
	3543.S(a} 	and 	(b)
provides:
17see
	also,
	Healdsburg 	Union 	High 	School
	District,
	supra,
(negotiability 	of 	various 	subjects
	not 	rendered
	moot
	because
	ofpassage 	of 	contract
	year 	during
	which
	the 	issues 	arose).
16

It
	shall
	be
	unlawful
	for
	a
	public
	school
employer
	to:
(a} 	Impose
	or
	threaten
	to
	impose
	reprisals
on
	employees,
	to discriminate
	or
	threaten 	to
discriminate 	against
	employees,
	or 	otherwise
to
	interfere
	with,
	restrain,
	or 	coerce
employees
	because
	of
	their
	exercise 	of
rights
	guaranteed
	by
	this
	chapter.
(b} 	Deny
	to
	employee
	organizations
	rights
guaranteed
	to
	them 	by
	this
	chapter.
In
	San
	Francisco
	Community
	College
	District
	(10/12/79)
	PERB
Decision
	No.
	105,
	the
	PERB
	held
	that 	section
	3543.5(a)
	and 	(b)
were
	derivative 	violations
	of
	a
	section
	3543.5(c)
	violation.
Consequently, 	the
	District
	has
	also 	violated 	section
	3543.5(a)
and
	(b)
	in
	addition
	to
	section
	3543.5(c).
In
	its
	brief
	the 	Association
	raises
	the 	claim
	that
	the
District
	has
	negotiated
	with
	individual
	employees,
	thus
violating 	section
	3543.
18 	Assuming
	the 	Association
	was
	even
permitted,
	at 	this 	late
	date 	to
	"amend
	its
	charge
	to
	conform
	to
proof,"
	and
	assuming
	that
	negotiating
	with
	an
	individual
	would
violate 	section
	3543,
	the 	Association
	has 	not 	presented
	any
material
	evidence 	to 	indicate 	that
	the
	District
	sought
	to
18sec.
	3543
	provides 	in
	pertinent 	part:
Public 	school
	employees
	shall
	have
	the
	right
to
	form,
	join,
	and
	participate 	in 	the
activities
	of
	employee
	organizations 	of
their
	own
	choosing 	for 	the 	purpose 	of
representation
	on
	all
	matters 	ofemployer-employee
	relations. 	Public 	school
17

negotiate
	with
	individual
	employees.
	The
	claim
	is
	baseless
	and
consequently 	dismissed.
Remedy
Under
	Government
	Code
	section 	3541.5(c), 	the 	Public
Employment
	Relations
	Board
	is
	given:
•••
	the
	power
	to 	issue
	a
	decision
	and
order
	directing
	an
	offending
	party
	to 	cease
and
	desist
	from
	the
	unfair
	practice
	and
	totake
	such
	affirmative 	action,
	..•
	as
	will
effectuate
	the
	policies
	of
	this
	chapter.
In 	the
	present 	case,
	the
	District
	has
	violated 	section
3543.5(a),
	(b) 	and 	(c) 	by
	unilaterally
	changing
	the
	evaluation
procedures
	for
	certificated
	employees 	age
	65 	and
	above.
	A
remedy
	requiring
	the
	District
	to 	return 	to 	the
	status
	quo
	ante
is
	appropriate 	to
	effectuate
	the
	policies
	of 	the
	EERA
	because
it
	restores,
	to
	the 	extent 	possible,
	the
	positions
	the
	parties
occupied
	prior
	to
	the
	unilateral
	change
	in 	the
	status
	quo.
Plycoma 	Veneer 	Co. 	(1972) 	196
	NLRB
	1009 	[80
	LRRM
	1222].
Consequently, 	the
	District 	shall
	be
	ordered 	to
	offer
employees
	shall 	also
	have
	the
	right
	to
refuse 	to 	join
	or
	participate
	in 	the
activities
	of
	employee
	organizations
	and
shall
	have
	the
	right 	to 	represent
	themselves
individually
	in
	their
	employment
	relations
with 	the 	public 	school 	employer, 	except
	that
once
	the
	employees
	in
	an
	appropriate 	unit
have
	selected
	an
	exclusive 	representative
and
	it
	has 	been 	recognized 	pursuant 	to
Section
	3544.1 	or
	certified
	pursuant 	to
Section 	3544.7,
	no 	employee
	in
	that 	unit
	may
meet 	and
	negotiate 	with 	the 	public 	schoolemployer.
18

reinstatement
	with
	full
	back 	pay
	and
	benefits
	plus
	interest 	at
the
	rate
	of
	7
	percent
	per
	annuml9	
to
	any
	certificated
employee
	who
	desired 	to
	continue
	employment
	with 	the
	District
and
	was
	denied
	such
	employment 	by
	virtue
	of
	the
	implementation
of
	District
	Policy
	6460.
	The 	amount
	is
	to
	be
	offset
	by
earnings obtained
	as
	a
	result
	of 	other
	employment
	during
	this
period.
Additionally,
	it
	is
	appropriate 	to
	order
	that
	the
	District
cease
	and
	desist
	from 	any
	further
	unilateral
	actions
	on
	matters
within 	the
	scope
	of 	representation
	without 	providing
	the
exclusive 	representative 	notice
	and 	an
	opportunity 	to
	negotiate.
It
	also
	is
	appropriate
	that
	the
	District
	be
	required 	to
post
	a
	notice 	incorporating
	the
	terms
	of
	the
	order.
	The
	notice
should
	be
	subscribed
	by
	an
	authorized 	agent 	of 	the
	District
indicating 	that
	it
	will
	comply
	with 	the
	terms
	thereof.
	The
notice 	shall
	not
	be
	reduced
	in
	size.
	Posting
	such
	a
	notice
will
	provide
	employees
	with
	notice
	that
	the
	District
	has
	acted
in
	an
	unlawful
	manner 	and
	is
	being
	required 	to
	cease
	and
	desist
from
	this 	activity
	and
	to
	restore
	the
	status
	quo.
	It
effectuates
	the 	purposes
	of 	the
	EERA
	that
	employees 	be 	informed
of 	the
	resolution 	of 	the 	controversy
	and
	will
	announce
	the
District's
	readiness 	to
	comply
	with 	the 	ordered
	remedy. 	See
Placerville
	Union
	School
	District
	(9/18/78)
	PERB
	Decision
19cf. 	San Mateo 	County 	Community
	College
	District,
	supra.
19

No.
	69.
	In
	Pandol
	and
	Sons
	v.
	ALRB
	and
	UFW
	(1979) 	98
Cal.App.3d 	580, 	587,
	the
	California
	District
	Court
	of
	Appeal
approved
	a
	posting
	requirement.
	The
	U.S.
	Supreme
	Court
approved
	a
	similar
	posting
	requirement 	in
	NLRB
	v.
	Express
Publishing
	Co. 	(1941) 	312
	U.S.
	426 	[8
	LRRM
	415].
PROPOSED
	ORDER
Upon
	the 	foregoing
	findings 	of
	fact
	and
	conclusions 	of
	law,
and
	the
	entire
	record 	in
	this
	case,
	and
	pursuant
	to
	Government
Code
	section
	3541.5(c),
	it
	is
	hereby
	ordered
	that
	the
	Walnut
Valley 	Unified
	School
	District,
	its
	governing
	board
	and
	its
representatives
	shall:
1.
	CEASE
	AND
	DESIST
	FROM
a. 	Failing
	or
	refusing,
	upon
	request, 	to
	meet 	and
negotiate
	in
	good
	faith
	with
	the
	Walnut
	Valley 	Educators
Association
	with
	respect 	to matters 	within 	the
	scope
	of
representation
	as 	defined 	in
	Government 	Code
	section
	3543.2,
and
	specifically
	with
	respect 	to 	the
	unilateral
	change
	in
evaluation
	procedures 	of 	bargaining
	unit
	employees
	represented
on 	an
	exclusive 	basis
	by
	the 	Association, 	in
	violation
	of
Government 	Code
	section 	3543.5(c);
b.
	Denying
	the 	Association
	its
	right
	to 	represent 	unit
members 	by
	failing
	and
	refusing 	to
	meet 	and
	negotiate
	about
matters 	within 	the 	scope
	of 	representation;
c. 	Interfering
	with 	employees 	because 	of 	their 	exercise 	of
their 	right 	to 	select
	an
	exclusive 	representative 	to
	meet 	and
20

negotiate
	with 	the
	employer
	on
	their
	behalf
	by
	unilaterally
changing
	matters
	within 	the
	scope
	of
	representation
	without
meeting
	and
	negotiating
	with
	the
	exclusive
	representative.
2.
	TAKE
	THE 	FOLLOWING
	ACTION
	WHICH
	IS
	DESIGNED
	TO
EFFECTUATE
	THE
	PURPOSES
	OF 	THE
	EDUCATIONAL
	EMPLOYMENT
RELATIONS 	ACT:
a.
	Return
	to 	the
	status
	quo
	as
	of
	March
	20, 	1978,
	when
	the
unilateral
	change
	in 	evaluation
	procedures 	for
	certificated
employees 	age
	65
	and
	above,
	became
	effective.
b. 	Offer
	reinstatement
	with
	full
	back 	pay
	and
	benefits
plus
	interest 	at
	the
	rate
	of
	seven
	(7)
	percent
	per
	annum
	to
	any
certificated
	employee
	who
	desired 	to
	continue
	employment
	with
the
	District
	and
	was
	denied
	such
	employment 	by
	virtue
	of 	the
implementation
	of
	District
	Policy
	6460.
	The 	amount
	is
	to
	be
offset
	by
	earnings 	obtained 	as
	a
	result
	of 	other
	employment
during
	this
	period.
c.
	Within
	five
	(5)
	calendar
	days
	after 	this
	decision
becomes
	final,
	prepare
	and
	post 	copies 	of 	the
	NOTICE
	TO
EMPLOYEES
	attached
	as
	an
	appendix
	hereto,
	signed
	by 	an
authorized 	agent 	of 	the
	District,
	for
	at 	least 	thirty
	(30)
workdays
	at
	its
	headquarters
	office
	and
	in 	conspicuous
	places
at
	the
	locations
	where
	notices 	to
	certificated
	employees
	are
customarily 	posted.
	It
	must
	not
	be
	reduced 	in 	size
	and
reasonable 	steps
	should
	be
	taken
	to 	see
	that
	it
	is
	not 	defaced,
altered,
	or 	covered
	by 	any
	material.
21

d.
	Immediately
	upon
	completion
	of 	the 	posting
	period,
	give
written
	notification
	to
	the
	Los
	Angeles
	Regional
	Director 	of
the 	Public
	Employment
	Relations
	Board,
	of
	the
	actions
	taken
	to
comply
	with
	this
	order.
3.
	The
	allegation 	that
	the
	District
	violated
	Government
Code
	section
	3543 	by
	negotiating
	with
	individual
	employees
	is
hereby
	DISMISSED.
Pursuant
	to 	California
	Administrative
	Code,
	title
	8,
	part
III,
	section
	32305,
	this
	Proposed
	Decision
	and
	Order
	shall
become
	final
	on
	November
	12,
	1980
	unless
	a
	party
	files
	a
timely 	statement
	of 	exceptions.
	See
	California
	Administrative
Code,
	title
	8,
	part
	III,
	section
	32300.
	Such
	statement 	of
exceptions
	and
	supporting
	brief
	must
	be
	actually
	received
	by
the 	executive
	assistant
	to 	the
	Board
	at
	the 	headquarters
	office
of 	the 	Public
	Employment
	Relations
	Board
	in
	Sacramento
	before
the 	close 	of 	business
	(5:00
	p.m.)
	on 	November
	12,
	1980
in 	order 	to
	be
	timely
	filed.
	See
	California
	Administrative
Code,
	title
	8,
	part
	III,
	section
	32135.
	Any
	statement
	of.
exceptions
	and
	supporting
	brief
	must 	be
	served 	concurrent 	with
its
	filing
	upon
	each
	party 	to
	this
	proceeding. 	Proof
	of
22

23	23
service
	shall
	be
	filed
	with
	the
	Board
	itself.
	See
	California
Administrative
	Code,
	title
	8,
	part	
III,	
sections
	32300
	and
32305,
	as
	amended.
Dated:	
October
	22,
	1980
~
~eolQ__
BRUCE 	BARSOOK
Hearing
	Officer

APPENDIX
NOTICE
	TO
	EMPLOYEES
POSTED
	BY
	ORDER
	OF
	THE
PUBLIC
	EMPLOYMENT
	RELATIONS
	BOARD
An
	Agency
	of
	the
	State
	of
	California
After
	a
	hearing 	in
	Unfair
	Practice
	Case
	No. 	LA-CE-516,
Walnut
	Valley
	Educators
	Association 	v.
	Walnut
	Valley 	Unified
School
	District,
	in
	which
	all
	parties
	had
	the
	right
	to
participate,
	it
	has
	been 	found
	that
	the
	Walnut
	Valley 	Unified
School
	District
	violated
	Government 	Code
	section
	3543.S{a),
	{b)
and 	{c) •
As
	a
	result
	of
	this
	conduct,
	we
	have 	been
	ordered
	to
	post
this
	Notice,
	and
	will
	abide
	by
	the 	following.
	We
	will:
1.	
CEASE
	AND
	DESIST
	FROM:
a. 	Failing
	or
	refusing,
	upon
	request, 	to
	meet 	and
negotiate
	in
	good
	faith
	with
	the
	Walnut
	Valley 	Educators
Association
	with
	respect 	to 	matters 	within 	the
	scope
	of
representation
	as
	defined 	in
	Government 	Code
	section
	3543.2,
and
	specifically
	with
	respect 	to 	the
	unilateral
	change
	in
evaluation
	procedures 	of 	bargaining 	unit
	employees
	represented
on 	an
	exclusive 	basis
	by
	the 	Association, 	in
	violation
	of
Government 	Code
	section
	3543.S{c);
b.
	Denying
	the 	Association
	its
	right
	to 	represent 	unit
members 	by
	failing
	and
	refusing 	to
	meet 	and
	negotiate
	about
matters 	within 	the 	scope
	of 	representation;
1

c.
	Interfering
	with
	employees
	because
	of
	their
	exercise
	of
their
	right
	to
	select
	an
	exclusive
	representative
	to
	meet
	and
negotiate
	with
	the
	employer
	on
	their
	behalf
	by
	unilaterally
changing
	matters
	within 	the
	scope
	of
	representation
	without
meeting
	and
	negotiating
	with
	the
	exclusive
	representative.
2.
	TAKE
	THE FOLLOWING
	ACTION
	WHICH
	IS
	DESIGNED
	TO
EFFECTUATE
	THE
	PURPOSES
	OF 	THE
	EDUCATIONAL
	EMPLOYMENT
RELATIONS 	ACT:
a.
	Return
	to 	the
	status
	quo
	as
	of
	March
	20, 	1978,
	when
	the
unilateral
	change
	in 	evaluation
	procedures 	for
	certificated
employees 	age
	65
	and
	above,
	became
	effective.
b. 	Offer
	reinstatement
	with
	full
	back 	pay
	and
	benefits
plus
	interest 	at
	the
	rate
	of
	seven
	(7)
	percent
	per
	annum
	to
	any
certificated
	employee
	who
	desired 	to
	continue
	employment
	with
the
	District
	and
	was
	denied
	such
	employment 	by
	virtue
	of 	the
implementation
	of
	District
	Policy
	6460.
	The 	amount
	is
	to
	be
offset
	by
	earnings 	obtained 	as
	a
	result
	of 	other
	employment
during
	this
	period.
DATED:
Walnut
	Valley 	Unified
	School
	District
By
THIS 	IS
	AN
	OFFICIAL 	NOTICE. 	IT
	MUST 	REMAIN 	POSTED FOR
	AT
	LEAST
THIRTY 	(30)
	WORKDAYS 	FROM
	THE DATE 	OF
	POSTING
	AND MUST 	NOT
	BE
REDUCED 	IN
	SIZE,
	DEFACED, 	ALTERED OR COVERED BY ANY
	MATERIAL.
2